dated March 31st, 2016
1. Validity of these conditions
1.1 Our offers, services and deliveries to customers whose registered office is outside Germany shall be effected exclusively on the basis of these conditions of sale. These conditions shall become part of the contract upon acceptance of the offer or service or delivery respectively and shall also be valid for all future business relations even if not again expressly stipulated.
1.2 We hereby expressly oppose the customer’s different or additional terms of business.
2. Offer and conclusion of contract
2.1 The purchase order that is (signed and) placed by the purchaser is a binding offer. We can accept this offer within two weeks by sending a confirmation of order or by sending the ordered goods within this period. An acceptance with extensions, restrictions or other amendments is deemed to be a rejection in connection with a new request to the purchaser.
2.2 If we accept the purchase order with extensions, restrictions or other amendments, or if our confirmation of order is not in conformity with the order, the purchaser must accept it in writing within one week.
2.3 Offers made by us upon the request of the customer can only be accepted by the purchaser within two weeks as of the date of the offer.
3. Prices and calculations
3.1 Unless otherwise agreed all prices shall apply ex works plus packaging and shipping costs and any customs duty payable.
3.2 Changes in prices are only allowed if there are more than 4 months between the conclusion of the contract and the stipulated date of delivery; then, the price of the seller applicable on the date of delivery applies. In cases of delivery within 4 months, the price applicable on the day of conclusion of the agreement applies in every case.
3.3 We reserve the right to accept very small orders only upon payment of a minimum invoice value of √ 500.
4. Delivery and lead time
4.1 Risk passes to the customer at dispatch of the goods even if we bear the shipping expense. If dispatch is delayed through no fault of our own, risk shall pass to the customer at notice of readiness for dispatch. In this case we will, however, take out insurance as required by the customer at the latter’s request and expense. If the customer fails to call off without delay goods notified as ready for dispatch, the customer shall be deemed in default in taking delivery and shall bear the storage expense. Upon expiry of thirty days from sending of notice of readiness for dispatch we shall be entitled to set the customer a further period of two weeks to call off the goods, after which we shall withdraw from the contract and can demand damages instead of performance.
4.2 The commencement of the delivery time specified by us requires the timely and proper compliance with the purchaser’s obligations. The objection of non-fulfilment of contract is reserved.
4.3 Our obligation to deliver shall be suspended if the customer fails to fulfil its duties to cooperate and in particular fails to make a stipulated prepayment.
4.4 We are entitled to make partial deliveries. In cases of a mere partial delivery, the customer is not in default with their payment obligation or liable for damages in the case of the non-acceptance of the partial delivery if the customer has no particular interest in the partial delivery.
4.5 When selling goods made specially for the customer we shall be entitled to exceed or fall short of the contractually stipulated quantity by up to 10% as production reasons make it impossible to produce and supply exactly the stipulated quantity in every case. The customer will be invoiced for the quantity actually supplied.
4.6 If the customer bears the shipping expense the customer can specify the mode of dispatch in writing. Otherwise we will choose the mode of dispatch at our unqualified discretion. We shall be entitled to charge the customer at cost for special packaging such as wooden boxes, crates, pallets or cardboard packaging. We do not take back special packaging.
4.7 If agreements concerning delivery are made with reference to INCOTERMS, INCOTERMS 2000 shall apply unless otherwise stipulated.
5. Force majeure
5.1 If we are temporarily prevented or hindered in making the delivery or rendering the service due to force majeure or other unusual circumstances arising through no fault of ours, any stipulated time for performance shall be extended by the duration of the impediment. The same shall apply to any time or extension of time for performance granted by the customer. The customer is not entitled to withdraw from the contract or to demand damages before expiry of the extended time for performance. If the impediment is of more than two months’ duration, both the customer and we shall be entitled to withdraw from the unexecuted part of the contract. The customer’s contractual or statutory right to withdraw without granting an extension of time, for example due to cessation of interest, shall not be affected.
5.2 Force majeure shall be deemed to comprise in particular war, war – like states, mobilisation, import bans, export bans and blockades. Other unusual circumstances arising through no fault of ours shall include in particular transport disruptions, stoppages, delays in the delivery of raw materials, strikes, lockouts and other labour disputes, including any affecting our suppliers. We will notify the customer of the beginning and end of such hindrances.
6. Payment, securities, offsetting
6.1 Our invoices are due immediately upon dispatch of the goods. The customer must pay our invoices within thirty days from receipt of the goods; otherwise the customer shall be deemed in default without a reminder. Payment shall be deemed effective upon receipt of the money into our account. This also applies if we accept bills or cheques, which we are not obliged to do. In this case the customer shall also bear all the bill expenses and charges.
6.2 If more than one account is payable, part payments by the customer shall be set against the older accounts payable first. If the customer also has to pay interest and expenses the payment shall be set first against the expenses, then the interest and finally the principal sum. Customers’ different settlement terms will be effective only subject to our agreement.
6.3 If after conclusion of contract we become aware of circumstances casting doubt on the customer’s capacity to pay we may make delivery conditional upon advance payment of the purchase price and if such payment is not made within an appropriate time set by us we may withdraw from the contract. If we have already rendered the performance owed, all claims against the customer shall become payable immediately, even if a later payment date was stipulated.
6.4 The purchaser may only offset against counterclaims if such counterclaims result from a claim which entitles the refusal of performance, in particular the costs of the removal of defects or if these are uncontested.
7. Industrialproperty rights
7.1 Quotations, designs, drawings and other data and information supplied to the customer remain our property and are subject to our exclusive copyright. They shall not be copied or made accessible to third parties without our express consent and must be returned to us upon request if not required by the customer for the purposes of carrying out the contract or using the goods purchased.
7.2 The customer shall ensure that acceptance and execution of the order placed do not infringe any industrial property rights or other third party rights. This applies in particular but not exclusively when using drawings, samples, specifications and other manufacturing documents supplied by the customer.
7.3 If industrial property rights or other third party rights are nevertheless infringed by acceptance or execution of the order placed by the customer, the customer shall indemnify us against all third party claims made on that basis and shall compensate us in full for the loss thus arising including lost profits. If a third party applies for injunctive relief against us based on alleged infringements of industrial property rights we shall be entitled to refuse further performance of the contract until the customer furnishes adequate security for possible losses tobe determined by us ex aequo et bono.
8. Retention of title
8.1 The goods shall remain our property until full settlement of all our claims based on the business relationship with the customer. In case of payment by the cheque or bill method or other method where we -not being obliged to do so – sign a bill accepted by the customer for the purpose of discounting as drawer or endorser, title shall not pass until the customer has honoured all bills and finally indemnified us from any liability as a party to a bill of exchange.
8.2 In case of breach of contract by the customer, in particular default in payment, we shall be entitled to take back the goods. Taking back goods does not constitute withdrawal from the contract unless expressly declared by us in writing. We are entitled to realise the object of the sale after taking it back. The proceeds of realisation will be credited against the accounts payable by the customer less appropriate realisation expenses.
8.3 The customer is entitled to resell the goods in the ordinary course of business provided the customer is not in default in payment. Resale shall be subject to retention of title with an additional obligation upon the customer to disclose our retention of title to its buyers. Furthermore the customer shall here and now assign to us allclaims accruing to it against its buyers or third parties from resale irrespective of whether the object of the sale was resold without or after processing. The customer shall remain authorised to collect the claim even after assignment. Our authority to collect the claim ourselves shall not be affected. We undertake not to collect the claim as long as the customer meets its payment obligations and no application for commencement of insolvency proceedings is made.
8.4 Conditional goods are worked or processed on behalf of us as manufacturer in accordance with § 950 of the German Civil Code (BGB) without any liabilities thereby arising on our part. If the conditional goods are combined or mixed with other personal property we shall acquire ownership of the new thing in proportion to the current market value of our conditional goods to the value of the other objects processed at the time of combining. The customer shall preserve the new thing made on our behalf with ordinary care.
8.5 Upon request the customer shall supply us with a detailed list of claims assigned including the buyers’ names and addresses, the amount of the claim and invoice dates and shall provide us with all the information necessary for enforcement of the claims assigned and shall permit checking. The customer shall also disclose assignment to its buyers.
8.6 If the goods are indissolubly combined with other objects not belonging to us, we shall acquire joint ownership of the new thing in the proportion of the objective value of our goods to the other objects combined at the time of combining. If combining takes place such that the customer’s thing is to be considered the principal thing, the customer shall be deemed to transfer joint ownership to us proportionately. The customer shall without payment preserve the exclusive ownership or joint ownership thus created on our behalf. To secure our claims against it the customer shall also assign to us its claims accruing against a third party from combining of the goods with real property.
8.7 The customer shall at its own expense insure the conditional goods adequately at the replacement value. We shall be entitled at any time to demand production of the corresponding insurance policies and the relevant premium receipts.
8.8 The customer is not authorised to pledge conditional goods or a claim assigned to us or to transfer ownership by way of security. The customer must advise us without delay of any attachment of conditional goods or claims assigned, naming the pledgee.
8.9 We undertake to release securities to which we are entitled upon the request of the purchaser if their values exceed the claims to be secured by more than 20 %.
9. Defects
9.1 If the kind, condition or quantity of the goods is not as agreed (defects) the customer shall have the rights and duties described here. The contractually owed condition shall comply exclusively with the technical properties confirmed by us or, in the absence of corresponding confirmation by us, with the content of our relevant technical data sheets in the version current at the time of concluding the contract. We will give no warranties of any kind, in particular application warranties.
9.2 The customer must examine the goods within fourteen calendar days of receipt and notify us of any defects thus discovered or bound to be discovered. All defects must be notified in writing, giving full details of the defect. If no defects are notified within the above time the goods delivered shall be deemed accepted.
9.3 The customer must not install or otherwise use goods that are the subject of complaint or recognizably defective. We will not be liable for any damage due to breach of this obligation. In case of breach the customer shall also bear or if applicable reimburse us for the extra costs of subsequent performance arising (para. 9.4) due to installation or other use.
9.4 If goods are defective and not deemed approved, the customer can demand subsequent performance. This shall be effected at our option by repair or by delivery of goods free from defects unless any kind of subsequent performance is recognizably inappropriate or unreasonable for the customer for special reasons.
9.5 The customer can set us a time period of not less than three weeks for subsequent performance. Exceptionally, a shorter time period is permissible if the customer would otherwise suffer unreasonable hardship. The time period must be set in writing.
9.6 On expiry of the time period allowed for subsequent performance the customer can withdraw from the contract due to the defect, request a reduction of the purchase price or demand damages, subject to the further conditions of section 10 below.
9.7 Claims for defects become time-barred 12 months after the delivery of the goods supplied by us to the purchaser. The statutory period of limitation applies to claims for damages in cases of intentional and gross negligence or injury to life, body or health that are based on an intentional or negligent violation of the obligations of the user. If longer periods are prescribed by law according to Section 438, para. 1, no. 2 BGB [Bürgerliches Gesetzbuch = German Civil Code] (buildings and components for buildings), Section 479, para. 1 BGB (recourse claim) and Section 634a, para. 1 BGB (construction defects), such periods will apply.
9.8 There are no claims for defects in cases of minor deviations from the stipulated quality, minor impairments of the usability, natural wear or tear, and damages which arise upon the transfer of risk due to incorrect or negligent treatment, excessive use, unsuitable operating materials, defective construction work, unsuitable construction ground or due to particular external influences which are not required under the contract.
10. Liability for damages
10.1 We shall have unlimited liability as provided by law for intentional or grossly negligent breach of duty and for losses due to injury to life, limb or health. In other respects we shall be liable only if the contractual obligation breached is fundamentally important for attainment of the purpose of the contract, liability being limited to the amount of the average foreseeable loss typically occurring.
10.2 This limitation of liability shall apply mutatis mutandis to claims other than contractual damage claims, in particular tortious claims for damages, except for claims under product liability law, including in favour of our employees, workers, staff, representatives and persons employed in the performance of our obligations.
11. Information and advice
We are not obliged to give advice on applications. Advice and information nevertheless provided is without commitment unless given in writing. Provision of advice and information does not release the customer from the obligation to use our products properly and correctly. In the case of advice and information that is incorrect or is omitted in breach of duty we shall be liable only in case of intent or gross negligence and resulting injuries tohuman life, limb or health.
12. Assignment
Assignment of the customer’s claims against us shall be not effective without our consent.
13. Data storage
It should be noted that the customer’s personal data will be stored in our data processing system for future business relations.
14. Place of performance and place of jurisdiction
14.1 The place of performance for all present and future claims for delivery and payment based on the business relationship shall be Oberhausen.
14.2 The place of jurisdiction for all claims arising from the contractual relationship shall likewise be Oberhausen. We shall, however, also be entitled to sue the customer at the latter’s residence or principal place of business.
14.3 The contractual relationship shall be governed by German law even if the customer’s principal place of business is not in Germany.